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November 2021

Vol. 163 / No. 1424

Going, going, gone

In our September issue we published an article by Guido Rebecchini on a remarkable bronze roundel of Mars and Venus attributed to Gian Marco Cavalli that may have been made c.1500 for Isabella d’Este. Its owner had applied to export it from the United Kingdom but the Secretary of State at the Department for Digital, Culture, Media and Sport had exercised his right to defer the decision whether to grant the licence in order to give a public institution or an individual the opportunity to make a matching offer. The six months’ deferral expired on 27th September without any such offer being made, with the result that a Renaissance sculpture of exceptional beauty and historic interest that had been in England for three centuries left the country, almost certainly for ever.

Given the very high valuation of the roundel – £17 million plus VAT – that outcome will not have come as a great surprise to anybody who reads the annual reports of the Reviewing Committee on the Export of Works of Art and Objects of Cultural Interest, the body that advises the Secretary of State as to whether the granting of an export licence should be deferred, since it has long been evident that objects at that level of the market are rarely retained through the export review system. These reports are of great importance for explaining to the public how the system of export controls helps to retain items of exceptional cultural interest in the United Kingdom, so it is to be hoped that there is no foundation for the rumour that the Secretary of State is thinking of doing away with them on the grounds of cost. As a result of the pandemic, the last report, published in July, covered two years. In 2018–19 export licences were deferred for nineteen items, of which seven were acquired by British institutions; in 2019–20 the numbers were fifteen and five respectively. 

Although retention rates of 47 per cent and 33 per cent sound encouraging, the figures for the value of what has been retained are less so. The total value of items retained in 2018–19 was £6.3 million, or 14 per cent of the total value of objects placed under deferral, and in 2019–20 the figure was £1.3 million – just 2 per cent. The objects that were retained included significant items of historical interest, such as the notebooks of the geologist Charles Lyell in 2018–19 and a John Donne manuscript in 2019–20. Important works of decorative art were retained in 2018–19 together with two outstanding paintings, an anonymous depiction of the Spanish Armada and J.M.W. Turner’s Walton Bridges, acquired by National Museums Northern Ireland and Norfolk Museums Service respectively. However, in 2019–20 the only retained work of art was a ceramic anthropomorphic crab by the Martin Brothers, which was acquired by the Lightbox, Plymouth. The list of what got away makes painful reading for anyone concerned with art collections in Britain: they include two paintings by Joseph Wright of Derby, a bust by Antonio Canova and Johann Liss’s Temptation of Mary Magdalene, which had been in England since 1747. 

How can more be kept? There are at least three aspects to any answer – the operation of the rules, the curatorial capacity of public collections and, most fundamentally, finance. As far as the rules are concerned, on 1st January this year the Government introduced the first major change to the export review system since 1991, when it became possible for private individuals to make matching offers for export deferred items. Under the old rules, when the owner of such an item was informed that there was an intention to make an offer to purchase it, they had two options – withdraw their application for a licence or accept the offer. If they took the second option, there was, however, no legal obligation on them to sell the item to the prospective purchaser. The consequences of that were made apparent in 2016 when the owner of Pontormo’s Portrait of a young man in a red cap accepted a matching offer from the National Gallery, London, of £30.7 million, only to refuse to go ahead with the sale when the Gallery had raised the money, on the grounds that a drop in the value of sterling against the dollar since his purchase of the painting meant that he would suffer a financial loss. As a result of this case, the Government opened a public consultation on whether to introduce a legal obligation on export licence applicants to honour their commitment to accept a matching offer, while alleviating the risk to owners of financial loss by allowing them to choose the currency of the purchase price.

Now that this rule has been instituted, an owner can withdraw an application for an export licence up to the end of the first deferral period (usually two to four months) but if there is a serious expression of interest to purchase the object, a second deferral period (usually a maximum of six months) will be triggered only when the owner has granted an option agreement giving the prospective purchaser a contractual right to purchase the item if they can match the price. Such agreements may therefore come into operation if matching offers are made for the two current cases in which the granting of a licence has been deferred, Baldassare Peruzzi’s Nativity and a collection of drawings, watercolours and prints by John Gould. Welcome although this change is, it puts pressure on the prospective purchaser: they are given only fifteen days after the completion of the first deferral period to negotiate a fairly complex contractual arrangement and if this is not achieved the owner can apply for the licence, which is unlikely at that stage to be refused. Moreover, if the owner enters into the agreement but then breaches it, it is up to the purchaser to enforce it.

This emphasises even further the crucial and demanding role played by curatorial expertise in the working of the system. The curators who act as expert advisers not only sift export applications – in 2018–19 alone 37,942 items with a value of £1.87 billion were issued with export licences after they had been referred to expert advisers – they are also expected to act as champions for the retention of objects that have had their export licences deferred. They are also responsible for obtaining valuations of the deferred works, since – incomprehensibly – outside funders such as the Art Fund and even the National Heritage Memorial Fund insist on independent valuations rather than accepting those agreed by the Secretary of State. The cull of senior curators in a number of national institutions as a result of the pandemic inevitably threatens the proper working of the system.

In the end, however, the real weakness of the export controls is the fact that the system of funding acquisitions in the United Kingdom is piecemeal and parsimonious. The country’s national museums must look enviously at the benefits offered by the French tax code to companies helping public collections acquire works of ‘major heritage interest’ – for example, since 2003 AXA has funded the Musée du Louvre’s purchase of works by Rosso Fiorentino, Ingres, Claude-Joseph Vernet and, most recently, in 2020, François Girardon. Had such resources existed in the United Kingdom it is possible that the Victoria and Albert Museum might now be celebrating the acquisition of Cavalli’s great sculpture.